International Fabricare Institute v. U.S. E.P.A.
| Decision Date | 04 November 1992 |
| Docket Number | Nos. 91-1148,91-1151 and 91-1154,91-1150,s. 91-1148 |
| Citation | 972 F.2d 384,297 U.S.App.D.C. 331 |
| Parties | , 297 U.S.App.D.C. 331, 22 Envtl. L. Rep. 21,385 INTERNATIONAL FABRICARE INSTITUTE for itself and on behalf of its members, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Halogenated Solvents Industry Alliance, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of an Order of the Environmental Protection Agency.
Peter D. Robertson, Washington, D.C., (for Intern. Fabricare Institute), Mark P Fitzsimmons (for Dow Chemical Co., Shell Oil Co., and Occidental Chemical Corp.) and Steven S. Rosenthal (for Nat. Elec. Mfrs. Ass'n and Chemical Mfrs. Ass'n), with whom Timothy A. Vanderver, Jr. and Duane A. Siler (for Intern. Fabricare Institute), Daniel Joseph and Cheryl A. Adams (for Dow Chemical Co., Shell Oil Co., and Occidental Chemical Corp.) were on the joint brief, for petitioners. Timothy S. Hardy also entered an appearance for petitioners National Elec. Mfrs. Ass'n and Chemical Mfrs. Ass'n in No. 91-1154.
Ronald M. Spritzer, Baltimore, Md., Attorney, U.S. Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., and Karen Clark, Atty., U.S. E.P.A., Washington, D.C., were on the brief, for respondent.
W. Caffey Norman III, Washington, D.C., for intervenor.
Before BUCKLEY, SENTELLE, and RANDOLPH, Circuit Judges.
OPINION PER CURIAM.
In these consolidated cases, petitioners challenge regulations promulgated by the Environmental Protection Agency ("EPA" or "Agency") pursuant to the Safe Drinking Water Act. The regulations establish permissible concentration levels for contaminants occurring in drinking water. Petitioners claim that the EPA committed both substantive and procedural errors in formulating the regulations.
Before turning to the merits of these challenges, we first consider the EPA's contention that one of the consolidated petitioners, International Fabricare Institute, lacks standing to challenge the regulations because its claims of injury are too speculative. We reject this contention and conclude that all petitioners satisfy both the constitutional and prudential requirements for standing.
Petitioners raise a general challenge to the EPA policy rejecting the existence of safe threshold levels for carcinogens in the absence of contrary evidence. Petitioners then present procedural and substantive challenges to the permissible concentration levels established for two contaminants--dibromochloropropane and ethylene dibromide. Petitioners also allege procedural defects in the regulations pertaining to perchloroethylene. Finally, petitioners assert that the EPA ignored the Administrative Procedure Act's notice and comment requirements when it chose a method for measuring polychlorinated biphenyls in water samples, and that we should therefore remand to the EPA both the choice of the method and the permissible contaminant level predicated on that method.
We conclude that the EPA complied with notice and comment requirements and adequately explained its rulemaking. Regarding the substantive challenges, we cannot find that the EPA's actions were arbitrary and capricious. We therefore deny the consolidated petitions in all respects.
The EPA promulgated the disputed regulations to implement the Safe Drinking Water Act ("SDWA" 1 or "Act"), 42 U.S.C. §§ 300f-300j-25 (1988), which requires the Agency to establish national drinking water standards and to issue regulations to prevent the harmful contamination of public water systems. The regulations are to identify contaminants occurring in drinking water that may have an adverse effect on health, and to regulate them to the extent cost and technology permit. The regulations are to establish a "maximum contaminant level goal" ("MCLG") for each identified contaminant. Id. § 300g-1(a)(3). An MCLG is a non-enforceable goal that is to be set "at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety." Id. § 300g-1(b)(4). The regulations for most contaminants also specify an enforceable "maximum contaminant level" ("MCL") that sets the maximum permissible level of the contaminant in water delivered to any user of a public water system. See id. § 300f(3). MCLs must be set "as close to the [MCLG] as is feasible." Id. § 300g-1(b)(4). "Feasible"" means using "the best technology, treatment techniques and other means ... available (taking cost into consideration)." Id. § 300g-1(b)(5).
On November 13, 1985, the EPA published a notice of proposed rulemaking for the regulation of specific water contaminants. See National Primary Drinking Water Regulations; Synthetic Organic Chemicals, Inorganic Chemicals and Microorganisms, 50 Fed.Reg. 46,936 (1985) ("1985 Proposed Rule"). The EPA resubmitted the rulemaking on May 22, 1989, to reflect revisions to the Act made by Congress in amendments enacted in 1986. See National Primary and Secondary Drinking Water Regulations, 54 Fed.Reg. 22,062, 22,068 (1989) ("Proposed Rule"). This revised proposal contained MCLGs and MCLs for thirty-eight organic and inorganic chemicals. Id. at 22,064. The Proposed Rule also responded to the comments the EPA had received on the 1985 proposal.
The EPA received approximately 170 comments on the Proposed Rule. The EPA held a public hearing and issued its response to them. See Comment/Response Document on 1989 Proposed Rule (Dec. 31, 1990), reprinted in Joint Appendix ("J.A.") at 1131-1483. Then in January 1991, the EPA promulgated the final regulations protested in this petition. See National Primary Drinking Water Regulations--Synthetic Organic Chemicals and Inorganic Chemicals; Monitoring for Unregulated Contaminants; National Primary Drinking Water Regulations Implementation; National Secondary Drinking Water Regulations, 56 Fed.Reg. 3,526 (1991) () ("Final Rule").
On March 28, 1991, several petitioners filed challenges to the final regulations. The petitions involve four contaminants. Petitioners Dow Chemical Company, Shell Oil Company, and Occidental Chemical Corporation seek review of the MCLs and MCLGs for 1,2 dibromo-3-chloropropane ("DBCP"). Dow also challenges the regulation with respect to ethylene dibromide ("EDB"). International Fabricare Institute ("IFI") and intervenor Halogenated Solvents Industry Alliance ("HSIA") ask us to set aside the regulations concerning tetrachloroethylene, also known as perchloroethylene ("perc"). Finally, National Electrical Manufacturers Association ("NEMA") and Chemical Manufacturers Association ("CMA") seek review of the rule relating to polychlorinated biphenyls ("PCBs"). We have consolidated these various petitions. See Order Granting Motion to Consolidate ( .
As part of its methodology for establishing MCLGs, the EPA has developed a classification scheme that sorts contaminants into "Groups" (A to E) and "Categories" (I to III). See Final Rule, 56 Fed.Reg. at 3,532. Group A contaminants are considered to be known human carcinogens based on sufficient human epidemiologic evidence. Id. Group B1 substances are considered probable human carcinogens based on limited human epidemiological evidence. Id. Group B2 chemicals are classified as probable human carcinogens "based on a combination of sufficient evidence in animals and inadequate data in humans." Id. Group C contaminants are defined as "[p]ossible human carcinogen[s] based on limited evidence of carcinogenicity in animals [and] the absence of human data." Id. Group D is reserved for substances that the EPA finds to be unclassifiable due to lack of data or inadequate evidence of carcinogenicity. Id. Finally, Group E chemicals are those for which the EPA finds no evidence of carcinogenicity based on adequate animal tests or animal and human epidemiological studies. Id.
In most cases, the EPA places Group A, B1, and B2 contaminants into Category I, Group C into Category II, and Groups D and E into Category III. Id. The EPA sets MCLGs for Category I chemicals at zero because it assumes, "in the absence of other data, that there is no known threshold" at which these known or probable carcinogens can be safely tolerated. Id. at 3,533. In contrast, Category II and III substances are set at levels "likely to be without an appreciable risk of deleterious health effects during a lifetime." Id. at 3,532.
Consolidated petitioners first raise a general challenge to this method for establishing MCLGs of zero for known or suspected carcinogens. They assert that the EPA erred by failing to address authoritative evidence indicating that there are safe threshold levels for carcinogens.
Turning to the specific contaminants, petitioners claim that the EPA acted arbitrarily and capriciously in setting the MCLGs and MCLs for DBCP and EDB, largely because of the EPA's alleged failure to address the available human epidemiological data on those chemicals. Regarding perc, petitioners challenge the EPA's action in setting the MCLG at zero, arguing that this was arbitrary and capricious because the EPA ignored its own procedures when it placed perc, a Group C chemical, in Category I. Finally, petitioners assert that the methodology used to measure PCBs and the MCL based upon that technique should be vacated because the EPA did not provide an opportunity for public comment on the crucial data that supported the EPA's conclusion that the methodology was reliable. We consider petitioners' standing and each of these challenges in turn.
Pursuant to the Administrative Procedure Act ("APA"), we will reverse an EPA action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1988). This highly deferential standard of...
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